Citation Nr: 9903791
Decision Date: 02/10/99 Archive Date: 02/17/99
DOCKET NO. 98-18 554 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim for entitlement to service connection for a
right inguinal hernia.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
K. McCormack, Associate Counsel
INTRODUCTION
The veteran had active military service from October 1968 to
September 1970.
This matter comes to the Board of Veterans' Appeals (Board)
from a Department of Veterans Affairs (VA) Oakland Regional
Office (RO) April 1998 rating decision which denied the
veteran's request to reopen his claim for service connection
for a right inguinal hernia.
FINDINGS OF FACT
1. The August 1993 rating decision, which denied service
connection for a right inguinal hernia, was not appealed
following the RO's issuance of notice of the denial.
2. The evidence submitted since the RO's August 1993 rating
decision includes evidence which was not previously
considered and which bears directly and substantially on the
issue of whether the veteran's right inguinal hernia had its
onset during service, and is so significant that it must be
considered in order to fairly decide the merits of the claim.
3. The veteran's right inguinal hernia had its onset during
active service.
CONCLUSIONS OF LAW
1. Evidence received since the RO denied service connection
for a right inguinal in August 1993 is new and material, and
the claim for this benefit is reopened. 38 U.S.C.A. §§ 5108,
7105 (West 1991 & Supp. 1998); 38 C.F.R. § 3.156 (1998).
2. Resolving all reasonable doubt in the veteran's favor, a
right inguinal hernia was incurred in service. 38 U.S.C.A.
§§ 1110, 5107(b) (West 1991); 38 C.F.R.
§§ 3.102, 3.303 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. New and Material Evidence
At the outset, the Board notes that it has a legal duty to
address the issue of whether new and material evidence has
been presented to reopen the claim regardless of how it has
been addressed by the RO. Barnett v. Brown, 8 Vet. App. 1
(1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996). The Board is
not bound by the RO's determination of whether new and
material evidence has been submitted and must make its own
determination as to that issue.
The August 1993 rating decision denied service connection for
a right inguinal hernia on the basis that the condition was
shown by the evidence of record. Said rating decision
indicated that the evidence of record at that time consisted
of the service medical records, covering the veteran's period
of service from October 1968 to September 1970, and a private
hospital report, dated December 1982. The service medical
records were negative for any complaint or finding referable
to a right inguinal hernia. The December 1982 hospital
report pertains to ailments not germane to the instant case.
Moreover, the information of record reflects that additional
evidence, which was of record when the RO rendered its August
1993 decision, included a December 1970 VA Hospital Summary,
along with an Operation Report, (received in April 1980).
However, a review of the August 1993 rating decision does not
indicate that the VA hospital records were considered by the
RO.
The August 1993 rating decision, denying service connection
for a right inguinal hernia, became final when the veteran
did not file a notice of disagreement within one year of the
date he was notified of the unfavorable determination.
38 U.S.C.A. § 7105(c); 38 C.F.R. § 3.104(a).
Pursuant to 38 U.S.C.A. § 7105(c), a final decision by the RO
may not thereafter be reopen and allowed. The exception to
this rule is 38 U.S.C.A. § 5108, which provides that "[i]f
new and material evidence is presented or secured with
respect to a claim which has been disallowed, the [Board]
shall reopen the claim and review the former disposition of
the claim." Therefore, once a RO decision becomes final
under section 7105(c), absent the submission of new and
material evidence, the claim cannot be reopened or
adjudicated by the VA. 38 U.S.C.A. §§ 5108, 7105(c).
"New and material evidence" means evidence not previously
submitted to agency decision makers, which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative or redundant, and which by itself
or in connection with evidence previously assembled is so
significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156(a).
With regard to petitions to reopen previously and finally
disallowed claims, the Board must conduct a two-step
analysis. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).
First, the Board must determine if the evidence submitted by
the claimant is new and material. Id; 38 U.S.C. § 5108. If
the Board determines that the submitted evidence is not new
and material, then the claim cannot be reopened. Id.
Second, if the Board determines that the claimant has
produced new and material evidence, it must reopen the claim
and evaluate the merits of the claim in light of all of the
evidence, both old and new. Manio, 1 Vet. App. at 145-46
(explaining that the relevant legislative history confirms
that Congress intended section 5108 to permit review of all
of the evidence of record once the claim is reopened).
The Board notes that the U.S. Court of Appeals for the
Federal Circuit recently held that the U.S. Court of Veterans
Appeals (Court) erred in adopting the test articulated in
Colvin v. Derwinski, 1 Vet. App. 171 (1991). See Hodge v.
West, 155 F.3d 1356, 1363-64 (Fed.Cir. 1998). In Colvin, the
Court adopted the following rule with respect to the nature
of the evidence which would justify reopening of a claim on
the basis of new and material evidence: "there must be a
reasonable possibility that the new evidence, when viewed in
the context of all the evidence, both new and old, would
change the outcome." Colvin, 1 Vet. App. at 174. In light
of the holding in Hodge, the Board will analyze the evidence
submitted in the instant case according to the standard
articulated in 38 C.F.R. § 3.156(a). This standard, as aptly
noted above, focuses on whether the new evidence (1) bears
directly and substantially on the specific matter, and (2) is
so significant that it must be considered to fairly decide
the merits of the claim. See Fossie v. Brown, 12 Vet. App. 1
(1998).
In view of the fact that the Court has held in Fossie that
the standard articulated in 38 C.F.R. § 3.156(a) is less
stringent than the one previously employed by Colvin, the
Board determines that no prejudice will result to the veteran
by the Board's consideration of this matter. See Bernard v.
Brown, 4 Vet. App. 384, 393-94 (1993).
Pertinent evidence submitted since the RO rendered its August
1993 rating decision includes VA clinical records, dated in
November and December 1970, (received in April 1998); and VA
outpatient treatment records, dated November 1986 to April
1996. The Board will also consider, for purposes of
determining whether a reopening is warranted, the additional
VA Hospital Summary and Operation Report that were initially
received in April 1980, but were not considered by the RO at
the time of its August 1993 rating decision.
In reviewing the evidence of record in support of the
veteran's attempt to reopen his claim for service connection
for a right inguinal hernia, the Board finds that at least a
portion of the evidence submitted subsequent to the RO's
unappealed August 1993 rating decision is new and material
according to the previously stated criteria of 38 C.F.R.
§ 3.156(a). Specifically, the Board finds that a VA clinical
record, dated on November 13, 1970, reveals that the veteran
reported complaints of right groin swelling for the previous
two months. A VA medical certificate, with that same date,
contains a notation of a right inguinal hernia for one month
and six weeks. Additionally, a December 10, 1970, VA
clinical record shows that the veteran reported a history of
right groin swelling for the previous two and a half months;
and that another VA clinical record, with that same date,
disclosed complaints of swelling in the right scrotum and a
hernia for a duration of six weeks. The Board also notes
that the VA outpatient records, dating from 1986 to 1996,
makes no reference to a right inguinal hernia. However, the
Board notes that the additional VA hospital records, namely a
December 1970 Hospital Summary and Operation Report, have
been added to the veteran's claims file, which was not
considered by the RO in August 1993. These hospital reports
indicate that the veteran was admitted on December 10, 1970,
with a history of a right inguinal swelling for two and a
half months, and further disclose that he had a right
inguinal herniorrhaphy on December 17, 1970. The final
diagnosis was of a right inguinal hernia. The service
medical records, however, revealed no objective findings of a
right inguinal hernia, although the veteran was discharge
from active duty on September 29, 1970. As such, these
treatment records show that he may have exhibited symptoms of
a right inguinal hernia during his period of active service.
Thus, this evidence tends to undermine the basis for the
August 1993 denial, namely that there was no evidence that
the veteran exhibited any symptoms of a right inguinal hernia
during his period of active service. Thus, the evidence
received since the RO's August 1993 rating decision is new
and material (neither cumulative nor redundant), and it must
be considered in order to fairly decide the merits of the
instant claim. Accordingly, the Board finds that the
veteran's claim is reopened, and a de novo review of the
entire evidence of record is warranted.
Since the RO had declined to reopen the veteran's claim, the
RO has not adjudicated the issue of entitlement to service
connection for a right inguinal hernia on a de novo basis.
The Board finds that in considering the merits of the
veteran's claim, the veteran has not been prejudiced with
respect to being afforded the full benefits of procedural due
process. See Bernard, surpa. In this regard, the Board
notes that the veteran has been provided the pertinent law
and regulations governing his claim. Additionally, the
veteran and his representative have consistently argued the
merits of the claim. The Board also notes that no further
development is warranted. The Board concludes that the
veteran had notice of the merits adjudication not considered
by the RO and finds that the veteran's interests are not
prejudiced by the Board's adjudication of his claim on the
merits. Curry v. Brown, 7 Vet. App. 59, 66-67 (1994).
II. Service Connection
The veteran contends that the symptoms associated with his
right inguinal hernia began during his period of active
service.
Service connection may be established for a disability
resulting from personal injury suffered or disease contracted
in the line of duty or for aggravation of a preexisting
injury suffered or disease contracted in the line of duty.
38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303.
For the showing of chronic disease in service there is
required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word
"chronic." Continuity of symptomatology is required where
the condition noted during service is not, in fact, shown to
be chronic or where the diagnosis of chronicity may be
legitimately questioned. When the fact of chronicity in
service is not adequately supported, then a showing of
continuity after discharge is required to support the claim.
38 C.F.R. § 3.303(b) (1998).
It is the defined and consistently applied policy of the VA
to administer the law under a broad interpretation,
consistent, however, with the facts shown in every case.
When, after careful consideration of all procurable and
assembled data, a reasonable doubt arises regarding service
origin, the degree of disability, or any other point, such
doubt will be resolved in favor of the claimant. 38 C.F.R.
§ 3.102.
For a veteran to prevail in his claim it must only be
demonstrated that there is an approximate balance of positive
and negative evidence. In other words, the preponderance of
the evidence must be against the claim for benefits to be
denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).
Based on the Board's review of the record, the veteran has
demonstrated that service connection is warranted for a right
inguinal hernia. There is no indication from the service
medical records that the veteran was treated for a right
inguinal hernia during service. Additionally, the report of
separation examination, dated in September 1970, reveals that
the abdomen and viscera (include hernia) were normal. The
veteran was honorably discharged from active duty service on
September 29, 1970.
Clinical and hospital records pertaining to treatment
provided by the VA, however, do lend support to the veteran's
contention that the symptoms associated with his right
inguinal hernia may have originated during service. These
record indicate that on November 13, 1970, the veteran
initially reported to the VA that he had experienced right
groin swelling for approximately two months. A VA medical
certificate dated at that same time indicates a history of a
right inguinal hernia, with a duration of one month and six
weeks. A consistent medical history was also documented in
subsequent clinical records, dated on December 10, 1970,
which reflects that the veteran had complaints of right groin
swelling for the past two and a half months, as well as
swelling in the scrotum for the previous six weeks.
Similarly, when the veteran was admitted to a VA hospital on
December 10, 1970, he again presented with a two and a half
months history of right inguinal swelling, which had been
asymptomatic and reducible. A physical examination conducted
at that time revealed a right inguinal hernia, which was
reducible, with a scrotal component. The diagnosis was of a
right inguinal hernia, and a right inguinal herniorrhaphy was
subsequently performed.
A discrepancy, however, was created as to the actual date of
the veteran's symptoms by VA clinical records, dated on
December 10, 1970, and on December 16, 1970, respectively.
These records indicate that the onset of the veteran's right
inguinal hernia would have occurred six weeks prior to
December 10, 1970, and that his symptoms of right inguinal
swelling would have occurred two months prior to December 16,
1970. Based on these reported medical histories, it would
appear that the veteran developed symptoms of his right
inguinal hernia after the date of his service discharge.
In resolving this discrepancy as to the date of onset, the
Board observes that the veteran has indicated to the effect
that he did experience symptoms of his right inguinal hernia
two and a half months prior to his VA hospital admission on
December 10, 1970. The veteran's current account as to the
onset of his symptoms is corroborated by the medical
information collected at the time he initially presented for
treatment at a VA facility in November 1970. Moreover, it is
apparent from a review of the clinical records, dated
November 13, 1970, that the veteran reported no other
complaints or history for his right inguinal hernia other
than that he had suffered swelling in right groin for two and
a half months previously. It is further evident from the
record that when the veteran presented for hospital admission
on December 10, 1970, VA examiners conducted physical
examinations of the veteran, which resulted in findings
consistent with continuing symptoms of a right inguinal
hernia, with a scrotal component (as indicated by the veteran
two and a half months earlier). Thus, given the
contemporaneous nature of the November 13, 1970 medical
evidence, and the fact that it contains a history of symptoms
which relate back to the veteran's period of active duty
service, the Board finds the veteran's initial account as to
the date of the onset of his symptoms to be credible; and
that it raises a reasonable doubt as to the incurrence of his
right inguinal hernia. Therefore, resolving that doubt in
the veteran's favor, the Board concludes that the veteran's
right inguinal hernia, which ultimately required a right
inguinal herniorrhaphy, is of service onset. Accordingly,
service connection is warranted for a right inguinal hernia.
ORDER
New and material evidence having been submitted, the
veteran's claim for service connection for aright inguinal
hernia is reopened.
Service connection for a right inguinal hernia is granted.
DEBORAH W. SINGLETON
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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